The Brazilian “Sixth Method” and BEPS Action 10: Transfer Pricing Control on Commodity Transactions

Aggressive tax planning, i.e. the act of sending profits to low-tax jurisdictions, is a reality. All countries in which significant economic activities are carried out make an effort to fight against it, using instruments such as transfer pricing rules, as well as those defined in the OECD Action Plan on Base Erosion and Profit Shifting (BEPS). The legal control of transfer pricing over commodity transactions represents a special challenge for developing countries – traditional commodity traders – for which such transactions constitute a significant source of revenue. This revenue comes not only from the trade transactions, but also from their taxation. This article aims to analyse the Brazilian “sixth method” for transfer pricing in commodity transactions in comparison with the guidelines established by Action 10 of the OECD BEPS Project. The goal is to determine whether Brazilian legislation is in line with the guidelines provided by the OECD, mainly with regard to compliance with the prestigious arm’s length standard as a criterion for allocating profits in transactions between related parties, and whether Brazilian legislation is efficient in its final scope for combating base erosion.